News And Seminars From Rich & Henderson

April 12, 2018 – In a split decision, the United States Court of Appeals for the Fourth Circuit ruled on a controversial issue of first impression regarding the Clean Water Act (“CWA”)  —  whether a discharge of pollutants to groundwater can violate the prohibition against point sources discharging pollutants without a permit.  The Court held that an undisputed discharge of gasoline from a pipeline into groundwater could, if the groundwater is shown to have a direct hydrological connection to a water of the United States, be a point source discharge of the gasoline in violation of the prohibition on discharges to waters of the United States without an NPDES permit. There was a high level of interest among environmental groups, industry associations and states (including, AL, AK, IN, KS, LA, MS, OK, SC, UT, WI and WV) in the appeal, which resulted in the filing of a number of amicus briefs. 

Previously, in the U.S. District Court for South Carolina, Defendant Kinder Morgan Energy filed a Motion to Dismiss the Clean Water Act citizen suit filed by the Savannah Riverkeeper, claiming that as a matter of law the discharge of gasoline through a leak from its pipeline (repaired prior to the filing of the notice of intent to sue) to groundwater cannot be a point source subject to the CWA.  The District Court granted the motion, ruling that it lacked subject matter jurisdiction, in part, because the CWA does not encompass the movement of pollutants through groundwater that is hydrologically connected to navigable waters. 

The Fourth Circuit disagreed, finding that if discharges through groundwater are sufficiently connected to surface waters of the U.S., they may support a claim under the CWA. It cautioned, however, that a discharge through groundwater does not always support CWA liability: “the connection between a point source and navigable waters must be clear.” Upstate Forever v. Kinder Morgan Energy Partners, L.P., 2018 U.S. App. LEXIS 9144, at *23. This analysis is essentially one of fact which must be both plead and proven:  “A plaintiff must allege a direct hydrological connection between groundwater and navigable waters in order to state a claim under the CWA for a discharge of a pollutant that passes through ground water.” Id. at *25-26.  Applying these criteria, the Court found that the Riverkeeper had pled facts sufficient to withstand the Motion to Dismiss and remanded the case to the District Court for further proceedings.

Before addressing the issue of the groundwater nexus, the Court addressed the question of what constitutes an ongoing discharge from a point source, which is a jurisdictional predicate for a CWA citizen suit (established by the U.S. Supreme Court in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 62 (1987).  This, it said, required a determination of “whether citizens may bring suit alleging a violation of the CWA when the source of the pollution, the pipeline, is no longer releasing the pollutant, but the pollutant allegedly is passing a short distance through the earth via ground water and is being discharged into surface waterways.” Upstate Forever, at *4. It concluded that the District Court was wrong to have found that it lacked subject matter jurisdiction under the CWA because the pipeline has been repaired, because “[d]ischarges of pollutants that derive from a “point source” and continue to be “added” to navigable waters”, are an ongoing violation. Id. at *4-5. 

The Court relied heavily on a decision reached for clients of Rich & Henderson in Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500 (4th Cir. 2015).  It explained, as in Goldfarb, that “although a defendant’s conduct that is causing a violation may have ceased in the past . . . what is relevant is that the violation is continuous or ongoing.” Upstate Forever, at *14. Although, the Goldfarb decision involved alleged ongoing violations of Recourse Conservation and Recovery Act, the Court found the citizen suit provisions at issue to be substantially identical regarding what constitutes and ongoing violation.

Judge Floyd, in a well written and reasoned dissenting opinion, disagrees with the ongoing violation analysis put forth by the majority.  Judge Floyd found that the Riverkeeper failed to show that the CWA violation is ongoing, because there is no ongoing discharge of pollutants from a point source.  “The only point source at issue—the pipeline—is not currently leaking or releasing any pollutants.” Id. at *43. 

It would not be a surprise if a petition for certiorari is filed with the Supreme Court by Kinder Morgan, given the high level of interest in the decision and the potential expansion of citizen suits likely to be spawned by the decision.

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